Some Howard farmers up in arms over development rights

Arthur Hirsch, The Baltimore Sun

Marge Cissel is pressing her right index finger into the cover of a white loose-leaf binder containing a new state law limiting the use of septic systems, urging restricted development rights for some farm property. She's had the binder for months now, adding up what the law means for the value of her family's 310 acres in the Lisbon area, and she's angry.

"This is not compensation," says Cissel, who with her husband, Lambert, started the Kimberthy Turf Farm 50 years ago. "This is legalized stealing. ... I think it's unconscionable, immoral."

She and her husband plan to be there Monday night as the Howard County Council hears testimony on a local bill drafted by the Department of Planning and Zoning to comply with the new state law. While the Cissels might not represent the majority of county farmers — many of whom have sold their development rights and will not be affected by the bill — the council is likely to hear from west county landowners who say the legislation would destroy the collateral they rely on when borrowing money to run their farms, value many are depending on to support their retirement.

"If the purpose of this is to preserve agricultural land, they have to preserve the farmer," Cissel says. "The way to do that is not to devalue these farmers' land."

The binder contains a copy of the Sustainable Growth and Agricultural Preservation Act, 53 pages detailing Maryland's effort to rein in the proliferation of septic systems in hopes of protecting the Chesapeake Bay from nutrient overload, complying with pollution limits established in 2010 by the U.S. Environmental Protection Agency. Pressed by Gov. Martin O'Malley, the measure adopted last spring represents a compromise with an attempt he made last year to impose a ban on septic systems for subdivisions of five houses or more.

Now the county has to implement the state measure. Howard Planning Director Marsha S. McLaughlin recognizes the "significant property rights concern," but she says many farmers have been paid for giving up development rights — either by retiring them through the state or county program, or selling them to developers who want to exceed local density limits in rural districts.

"They've had developers banging on their door for 20 years to buy their development rights," McLaughlin says.

The state law leaves it up to local jurisdictions to establish four "growth tiers" that correlate both with water and sewer service and characteristics of the land. The categories are: the most intensely developed areas where public services exist; areas where such services are planned; land where no services are planned but that is slated for rural development, where farms and forests are not prevalent; and land where no public services are planned that is zoned for agriculture or resource conservation.

It does not tell the counties which property to put in each category, and the state cannot veto county decisions, as a legislative amendment took that power away. However, the measure says the Maryland Department of Planning can file legislation to impose state approval authority if the agency finds that jurisdictions are trying to skirt the law's intent.

The counties must adopt some sort of four-part plan by Dec. 31 or properties on septic systems anywhere in the county will be limited to four or fewer lots, regardless of their size.

The council will hear testimony Monday night and is expected to vote on the bill in early December. Much of its nine pages consists of proposals lifted from the new general plan that were held in abeyance earlier this year while the rest of PlanHoward 2030 was adopted.

The dry legislative language in the state and local measures gives no hint of what many farmers say is at stake. While the county planning department says only 59 properties encompassing 1,780 acres will be affected, many of those owners are passionate in their objections.

The chief source of protest is the definition of "Tier IV," where subdivisions on septic systems can have no more than four lots, regardless of the size of the parcel. The proposal before the council defines this area as synonymous with the county's "rural conservation," or RC, zone. Within the bounds of zoning and the practicalities of how septic systems work, owners of land in that zone who are subdividing 20 acres or more can generally put up one house per 4.25 acres, or 23 houses on 100 acres. Under the council proposal, only four houses could be built on that 100-acre property.

"This is the most convoluted confiscation of property rights I've ever seen in my entire life," says Martha Clark, co-owner of a 320-acre farm and former head of the Howard County Farm Bureau.

She says the county has generally been fair in its dealings with farmers, but in this case, she's not convinced that local septic systems adversely affect the bay. And she says this legislation is superfluous in a county that has been progressive in its land-preservation efforts for decades.

About three-quarters of the county's 29,371 acres of farmland is under some form of agricultural development restriction, either because the owner sold rights to the state or county or to a developer through a program called the Density Exchange Option. That allows developers to pay owners in the rural conservation district for the right to build more houses in the rural residential (RR) district.

Gene Freeze, who owns a 70-acre horse farm and training center in Lisbon, calls the state legislation an "abuse of power, just through ignorance." He says his land lost about half its value in the recession, and "now I have some government bureaucrat tell me I have further lost value."

That is hardly the view of all farmers, says Howie Feaga, president of the county Farm Bureau, which has about 400 members. He says those who have sold their development rights won't be affected by the bill.

Feaga, who has his 101 acres in preservation, says he was opposed to the state legislation but "the county has worked very well with trying to hold property values up" through the density exchange. "A lot of farmers have been able to get a lot of value" for their land.

Feaga says he's pleased that the council is considering expanding the density exchange beyond the rural zones to include the more developed eastern part of the county that now has public water and sewer service.

Cissel and Freeze say they're skeptical about the value of the density exchange. Where's the market for them, they wonder.

"Nobody's going to buy them," Freeze says. "Where are they going to go? Are they going to go east? You think those people want more development?"

According to the Department of Planning and Zoning, the measure being considered by the council proposal would mean a loss of 166 to 419 lots. The number lost depends on the number of owners in that zone who have taken advantage of a provision in the state law allowing them to develop their land under the current zoning if they get applications in for septic percolation tests by July 1.

The Cissels are among the owners who have done that, putting up $80,000 in borrowed money to prepare an engineering plan to develop their land for houses — to keep that option open and buy them time to decide whether they want to do it eventually.

The state law includes the words "agricultural preservation," but it has prompted some farmers to rush into development plans they might not otherwise have considered, at least not so soon.

Councilman Greg Fox, who represents the western part of the county, says he's not happy with the bill and the council should consider an alternative. He says he'll propose that all rural conservation property already in agricultural preservation be designated as Tier IV. The rest of the land in the rural conservation and rural residential area would be designated for Tier III, Fox says. That's the category for rural development on septic systems.

McLaughlin says that would not fulfill the purpose of the state law, as it would only "protect land that's already protected. The intent of the law is to do a better job of protecting land."

Fox, the lone Republican on the five-member council, says he thinks his suggestion has "a shot" and that public turnout for the hearing will be "pretty heavy."

Lambert Cissel says he wishes he could make it heavy with farm equipment, like the tractor rally at the county office building he helped organize in 1982 to protest an attempt to impose a 20- or 25-acre minimum per house lot in the agricultural district. As he recalls, he drove a green John Deere himself, joining some 30 tractors that descended on the George Howard Building in bitter cold that January. The farmers had a fine time and the bill was defeated, he says.

He'd like to do it again but says he recently got back from a trip to Montana and hasn't had time to organize another ride-in. Besides, there are many fewer farmers now.